Tripartite promotional plan in the grocery field

No. 354. Tripartite promotional plan in the grocery field. The Commission issued an advisory opinion with respect to proposed tripartite promotional plan in the grocery field. The applicant proposed to lease space at a fixed fee in each of all competing food stores in the top 50 markets in the country. On this leased space the applicant wil install a display of stil-color i1ustrations of special food dishes. The applicant would sell advertising space to food packagers. The applicant would advertise the availability of his plan in the trade press and notify each store in a direct-mail program. Real estate brokers would also be used in an effort to secure participation by all competing retailers. Retailers with no floor space available for applicant' proposed display could participate by permitting the applicant to install 15 single modular units on shelves for which the retailers would receive the same compensation as retailers having applicant' s displays. ADVISORY OPINION DIGESTS 1097 The Commission advised the applicant that were the plan implemented as proposed, the Commission would have no objection to it. The Commission pointed out that were the plan implemented in a different manner, the promoter, the supplier, and the retailer might be acting in violation of Section 2 (d) or (e) of the Clayton Act, as amended , and/or Section 5 of the Federal Trade Commission Act. The Commission also told the applicant: The promoter must make it clear to each supplier and each retailer that even though an intermediary is employed in this plan it remains the supplier s responsibility to take all reasonabJe steps so that each of the supplier s customers , including those who do not purchase directly from the supplier, who compete with one another in reselling his products is offered an opportunity to participate in the promotional assistance plan on proportionally equal terms, which plan should include suitable alternatives if there are customers who may be unable as a practical matter to participate in the primary program; if not, the supplier, the retailer and the promoter participating in the plan may be acting in violation of Section 2 (d) or (e) of the Clayton Act and/or Section 5 of the Federal Trade Commission Act." (File No. 693 7122 Released July 10, 1969)